While the Obama Administration has announced an appeal in Massachusetts to reverse the victory with regard to same sex marriage, U.S. District Judge Virginia Phillips in Riverside, California has upped the ante by imposing a nationwide injunction on the policy of Don’t Ask Don’t Tell– a move also opposed by the Obama Administration. The Administration is now likely to move to reverse this victory in California — further angering those “lethargic” liberals that the Administration has been pushing to work for the Democrats.
Phillips’ injunction for the first time would halt the obnoxious policy created by President Bill Clinton. The Obama Administration previously asked the judge not to enjoin the policy, which is viewed by civil libertarians as unconstitutional and unAmerican.
This case was brought by the Log Cabin Republicans, a gay rights group.
The injunction extends beyond the immediate parties in the case and could be challenged as excessive (as argued by the Obama Administration before the trial court). However, it is not unprecedented. Indeed, if the policy is unconstitutional, the court has good reason to enjoin it. Otherwise, it would require dozens of insular rulings to practically shut it down across the country. Generally, when a law is unconstitutional, it is struck down. In this case, the court did not want the military to continue to implement the policy on its own authority.
If true to its earlier filings in the case, the Obama Administration is likely to appeal the injunction and seek an appellate ruling to set it aside. That will only alienate civil libertarians and gay rights advocates further before the election. President Obama has proven to be a perfect nightmare on civil liberties. While often using rhetoric to denounce things like torture and DADT, President Obama has adopted many of the same policies as the Bush Administration and worked in court to extinguish dozens of civil liberties cases.
Indeed, while many have expressed surprise that Bush is re-gaining popularity in the polls, it should be little surprise since many of Obama’s policies have vindicated Bush. From privacy cases to off-shore drilling to assassination lists, Obama has affirmed the positions of Bush over objections from civil libertarians, liberals, and other groups.
Now, weeks before the November elections, the Administration is opposing a core constituency in seeking to preserve a policy of discrimination against gay and lesbian citizens. The Administration previously (and successfully) sought to extinguish dozens of privacy lawsuits as well as actions seeking review of torture and assassination policies. Now, on both coasts, it is seeking to limit or reverse victories in favor of same-sex couples and gay military personnel. That is likely to convert that “lethargy” to anger for many liberals who have complained of the betrayal of core values by President Obama.
Source: WSJ
Re: DADT: this political hot potato [potatoe if you’re the former Indiana V-P] is too hot to handle for Congress. Not enough folks with political courage. Mr. President, Commander In Chief, do the right thing, issue an Executive Order ASAP,stop discrimination in the Armed Services and let the federal judges order stand. How’s that promise of change thing going? Frank
Frank,
You smooth talker you but I was 10 years old when the movie came out in 1955.
Here, however, is one of my favorites … just for you 😳
Blouise:
As Tramp probably said to Lady, can I buy you some spagetti and meatballs? A glass of Italian red wine?
Another classic from Walt Disney, before you were born:
http://www.youtube.com/watch?v=5WxDdz-Anls
Frank
Frank,
Si, Scorpione, Si
Blouise: Wonderful di vederti in questo nuovo sito. Sapevo che ti piacerebbe Thumper! Vieni spesso qui? Qual è il tuo segno? Posso offrirti da bere? Tutti i bye meglio per voi e la vostra, buona, Frank
[Blouise: Wonderful to see you at this new site. I knew you’d like Thumper! Do you come here often? What’s your sign? Can I buy you a drink? All the best to you and yours, good bye, Frank]
Frank,
Ciao amico mio … (hope that’s the right form)
As a dear friend [who was bi-sexual] once told me: ” How can anyone be against LOVE?”
In the words of a wise writer for Walt Disney, spoken by one of my favorites, Thumper:
http://www.youtube.com/watch?v=nGt9jAkWie4
Frank
Buckeye,
After reading Daniel R. Baker, I believe I had a basic misunderstanding of the President’s authority to repeal DADT by executive order … my apologies to you.
Some very interesting thoughts.
I want the explanation for the administration’s behavior to be innocent, which puts me in danger of wishful thinking. I campaigned hard for Obama (and I am not a liberal), and it’s painful to consider the possibility I was a sucker.
The hypothesis that Obama wants a SCOTUS ruling to invalidate DADT is interesting, but a SCOTUS ruling would be no slam-dunk affair; I’d guess it’s at least 50/50 SCOTUS would uphold DADT. Scalia, Alito, Roberts, and Thomas would uphold it; Breyer, Sotomayor, Ginsburg, and Kagan would vote to invalidate it, which leaves the choice to the ever-unpredictable Kennedy.
If Obama’s courting votes from the center, it seems a pretty stupid way to do it. As I interpret it, gay rights is important mostly to the hard left and hard right. The center cares much more about the economy, health care, and the overseas wars.
If Obama wants to repeal DADT legislatively instead of judicially, that would be uncharacteristically bold. He will be much more at the center of the controversy if he signs a statute repealing DADT than if the courts do the job.
One thing; I don’t think Obama has the authority to repeal DADT by executive order as Truman did with racial segregation. Racial segregation in the military was, I think, purely administrative and thus within the president’s power to end, but DADT is a statute passed under Congress’s authority to make rules for the government and regulation of the land and naval forces. So DADT needs to be repealed or declared unconstitutional.
Hi, everyone. I’ve really missed a lot of interesting threads due to having to practice law the last few weeks. There are very good arguments to be made both in favor of, and in opposition to, filing an appeal. I lean toward allowing the order to stand. The case was filed, after all, by a Republican group rather than by “activist” Democrats. Congress knows the handwriting is on the wall, and I expect the Pentagon report will be favorable. Furthermore, a majority of Americans are now in favor of ending the DADT policy. The Administration can make a principled decision not to pursue an appeal, allow Congress to digest the Pentagon study and then let the legislative process run its course. If an appeal is pursued, this agony will be prolonged for years and Republicans in Congress will refuse to face the issue since they can always use SCOTUS as a whipping boy in the end.
By the way, I checked out the responses on the Fox News blog on this story. You would be amazed (or perhaps not) at the number of people who believe that the UCMJ takes precedence over the Constitution and that the federal judiciary literally lacks jurisdiction to rule on any issues involving the military. There are probably retired colonels discussing a coup d’etat even now.
James M.
The first link was very helpful. I think, like lottakatz, they want to put this to bed so it never raises it’s ugly head again. If going to SCOTUS is what is necessary, they are willing to do it.
As Truman’s executive order on segregation shows, it isn’t just sign and everything’s roses. Doesn’t work that way.
Sometimes I think this is a Hannity website disguised as a civil rights website. :-/
Lottakatz
Me too.
From whom it most affects:
‘DADT’ ruling gives White House a legal quandary
By Leo Shane III
Stars and Stripes
Published: October 13, 2010
http://www.stripes.com/news/dadt-ruling-gives-white-house-a-legal-quandary-1.121714
“@ Maj Dennis Copson: Hang in there Major, we will have half this idiocy fixed next month and the other half fixed in 2012. Thats why they want to do it now, because they have roughly 30 days left. Sometimes people have to learn the hard way that you can’t put Democrats in charge of anything.
Written by RJFlorida, 13 October 2010 15:41
@ Maj DEnnis Copson: What on earth is ‘political’ about allowing qualified men and women to serve their country? You, sir, are making this political. Wake up to yourself.
Written by Bill, 13 October 2010 14:36
Now, at a time when our military is as heavily engaged as it has been for more than forty years, at a time when individual troops are ordered to repeated deployments to the war zones, now in a time of military uncertainty and maximum commitment, is the wrong time for our politicians to advocate for a social-engineering experiment by endorsing an end to the current don’t ask, don’t tell policy. Neither the president nor an overwhelming preponderance of those in Congress have served a single day in our country’s military. For them now to pander to a vocal minority seeking a liberal interpretation of society’s rules is disturbing and quite revealing as to the total lack of any consideration of the residual effects of their actions. To politicize our military in a time of war is as incredibly contemptible as it is indisputably ignorant of the military as an institution, a separate and distinct body tasked with the most crucial tasks of defending our nation in a time of war. To our politicians I say: Tinker with the civilian world if you must; do not impose your liberal agenda on America’s military for the purpose of vote gathering. Are there gays in our military? Certainly and always has been. “Don’t ask, don’t tell!” You can read my complete article here: http://www.associatedcontent.com/article/5815772/dont_ask_dont_tell_and_the_foll y_of.html?cat=9 ”
Written by Maj DEnnis Copson, USMC (ret), 13 October 2010 14:31
The fact that agencies don’t always file required reports shows that the agencies do what they want — with or without court orders. It is really a matter of policy as to whether the U.S. is a nation under Rule of Law or whether it is not.
Six,
Nice analysis
Daniel R. Baker
I’d like to see some “differential diagnosis” about why the Obama administration is pursuing these appeals, …
6. Something else I haven’t thought of.
—
At least in theory the best way to kill a law Congress has passed is to have a SCOTUS ruling- until that shoe drops the same matter can be re-litigated in slightly different form. Even then the actual ruling can be circumscribed, chipped away at and generally rendered far less effective by states, ROE V WADE for example. Since this ruling deals with the armed services and is not subject to tampering (or tempering) by individual states, a SCOTUS decision (upholding) would drive a stake through the heart of discrimination by the military against gays as it did for African Americans.
Good point, Elaine M. I’m going to use that illustration of Harry Truman ending segregation in the armed forces by executive order when I comment on the blogs. I didn’t remember that that was how Truman did it.
Daniel, I suspect it is #2 with an added note that they are also have confidence that they will not be LOSING votes because those who have gay-rights as a top issue are not going to suddenly start voting Republican and support a candidate such as Palin against him for president. So they have nothing to lose by gambling with the civil rights of a particular constituency and only help to take pressures off of close race moderate democrats. I further would add that it is also a political bargaining chip that he can play against the Republicans when in the lame duck session it does not get passed… he can blame it on the Republicans for being obstructionists for not supporting gay rights. Ultimately it is not in his personal best political interest to allow DoM or DADT go away through a court ruling finding them unconstitutional… particularly when it would be an activist group with ‘Republican’ in the name that he loses to.
I got a message from the Obama administration asking for a donation to fight the opposition like we did in 2008… fight them for what cause?
I have to wonder who is running this administration?
When my husband and I sued DOJ, they assigned only one lawyer to our case. His name is David Rybicki. I researched him on-line and contacted his previous employers and found out that he is really inexperienced. Also I looked him up on PACER and found that he was assigned to really a lot of cases and usually alone. There is a local rule in the court — DDC — to the effect that if a lawyer hasn’t been involved in a start to finish disputed lawsuit they can’t appear alone unless they fill out a special form and take a refresher course. The clerk’s office said they didn’t have the form filled out for him. I even pled this.
I also saw an on-line advertisement to positions in DOJ civil litigation in the District of Columbia and remember something about 150 lawyers in the division in that location. I tried to figure out how many civil lawsuits that are defended by DOJ are in DDC. A lot of the cases are captioned with the name of the department secretary. The impression I was getting is that there are probably lawyers in the department that are making litigation strategy decisions who have not filed a notice of appearance. They seem to be using young overworked lawyers as straw men so the government can distance itself from the positions it has taken and basically avoid estoppels.
In the district court, Rybicki pled general objection repeatedly and tried to confuse the actual statutory construction. DOJ didn’t file a reply to our unopposed opening brief filed 7/26/10 see http://www.rightscase.com.
DOJ has a few lawyers who specialize in appeals.
I was assisted in my appeal by the forms and details on the court’s website. Since I am pro se, “statutory construction” wasn’t exactly popping into my mind, but on the first form filed the court asks if it is a matter of statutory construction? Lightbulb. Then all you have to do is search on the term to find the authorities. Another thing that really helped me was using an Addendum and using footnotes to refer to that.
I pasted in a lot of authorities. Well as it was we spent $599 on printing and shipping when we filed the final unopposed brief with the separately bound exhibits, appendix and addendum. But the extra construction was worth it in terms of getting a handle on the material and keeping it organized; not easy for me.